A Dimension of Right in Analysing and Re-structuring Social Insurance in China

February 07,2018 By:CSHRS

A Dimension of Right in Analysing and Re-structuring Social Insurance in China

LI Yanjie

Abstract: The right to social insurance has been largely recognized by various laws and treaties. However, such an issue in terms of its theoretical construction and systemic orientation, as well as criticism, guiding principles and control of the institutional reform of the social insurance system has yet to be adequately addressed from the perspective of human rights in this country. The paper addresses the dimension of rights by analysing this issue from both dimensions of human rights and people's livelihoods. The author analyses the relationship between social insurance and the right to property, right to liberty and right to work, and argues for institutional improvement and reform of the social insurance system in this country.

Keywords: social insurance, human rights, property right, right to liberty, labour right

The International Covenant on Economic, Social and Cultural Rights recognizes “the right of everyone to social security, including social insurance”. The sozialgesetzbuch of Germany, for instance, stipulates that every German citizen enjoys the right to social insurance under this legal code. The sozialstaat as a supplementary restraint on basic rights empowers the legislators to intervene into basic rights in a legitimate way. Article 1 of the Law of Social Insurance of China pronounces that the legitimate right and interest of citizens to social insurance and states that insurance benefits shall be guaranteed as a basic legislative goal. The right to social insurance has been frequently established and regulated since.

Introduction: Why Should Human Rights be a Dimension in Analysing the Social Insurance System?

Why should human rights be a focus when discussing social insurance? This is not a self-evident question. But fundamentally speaking, human rights and people's livelihoods are interrelated. Without the foundation of human rights, people's livelihoods would be unpredictable, and without people's livelihoods, human rights protection would be challenged due to the lack of a sense of acquirement.

When talking about people's livelihoods in this country, we are actually referring to a concept of “social policy” within the context of political discussion in Europe and the United States. When talking about social policies and social legislations, we tend to adopt a positive stance. The policy should be based upon the financial budget and its distribution, which actually belongs to the financial policy of the nation. Thus, the social legislation becomes something that is at the state’s discretion. Following this line of thought we can see that when talking about the people's livelihoods, a state will take advantage of its authority in the process of determining the benefits extended to the people and provide them at its discretion. However, if we incorporate the issue of human rights into the discussion about people's livelihoods, securing people's livelihoods becomes the natural obligation and legitimate duty of the government.

The close relationship between human rights and people's livelihoods has attracted the attention of some researchers. The construction and development of social insurance institutions have a positive influence on the protection of human rights. Some researchers assert explicitly that the construction of a social security network will help push forward the guarantee and realization of human rights. People’s livelihoods are on the surface, whereas the fundamental issue is human rights. In Charles Reich’s view, a concept of human rights is badly needed when we are talking about benefits such as unemployment compensation and pensions. The goal of a welfare state can only be achieved through the transformation of these benefits and interests into concrete rights. The mere discussion about improving people's livelihoods means, on the one hand, demands for enhanced financial support; on the other hand, such support may cause more unfairness and lead to the problem of people being unwilling to support themselves. The reasons behind the dilemma are that such a right has not been recognized, respected or protected, and the group of people or individuals making the demand can hardly petition for protection in a legitimate way, and their real demands will not be properly addressed, not to mention solutions provided afterwards. Once the right is recognized, relevant guarantee mechanisms and remedies can be introduced within the framework of that right.

In talking about the issue of social insurance from the perspective of human rights, we should focus on the basic and fundamental problems. Reform of the social insurance system is closely related to people’s right to life. The public awareness of their personal rights, especially of their right to life and the right to social insurance, has a great influence upon the pace and orientation of the advancement of the social insurance system. Fundamentally, China’s reform of its social insurance system should emphasize fairness and justice, and the establishing of an institutional arrangement for guaranteeing people’s livelihoods, instead of patchwork-like mending and repairing of a flawed system.

I. Starting from a Positive Law: Origin of the Social Insurance Right in Chinese Law

Chinese law has a long tradition of recognizing the right to social insurance. In the 1951 Labour Insurance Regulations, such right was recognized in Article 17, which states “workers and employees working in enterprises offering labour insurance shall have the right to collective labour insurance benefits”. After the launch of reform and opening-up, the successive legislative efforts in social insurance have all emphasized the recognition of such a right in their texts. Examples include as follows:

Provision 1 of Article 3 of the Labour Law promulgated on July 5th, 1994, stipulates that workers enjoy the right to social insurance and welfare benefits. Therefore, the right to social insurance has been recognized in the law, but the scope of protection has been limited to the legitimate right of the workers, not all the people.

Section 2 of Chapter I of the Regulations on Unemployment Insurance passed on December 26th, 1998, and promulgated later on January 22nd, 1999, stipulates that unemployed workers of the public entities and enterprises in urban areas shall enjoy the benefit of unemployment insurance; the following Provision 1, Article 16, stipulates that unemployed workers with urban public entities and enterprises shall be informed of their right to unemployment coverage. In sum, the Regulations on Unemployment Insurance has explicitly established the right of workers to unemployment insurance, and such right has been ensured in both private and public laws.

The Interim Regulation on the Collection and Payment of Social Insurance Premiums introduced in 1999 stipulates that fee-paying entities and individuals have the right to check their payment records. The right to information of the entities and individuals has been established through such a rule.

Provision 2 of Article 2 of the Regulation on Work-Related Injury Insurances introduced in 2003 stipulates that employees of enterprises and individual industrial and commercial operators shall have the right to enjoy occupational injury insurance. The Regulation was revised on December 20th, 2010, with the right assured. The difference lies in the fact that the scope of coverage for occupational injury insurance has been greatly expanded to include all employees and hired hands of individual commercial and industrial household employers with enterprises, public entities, social associations, privately funded enterprises and units, foundations, law firms, accounting firms and other organizations within the boundaries of the People’s Republic of China.

Article 1 of Chapter 1 of the Social Insurance Law stipulates the legislative purpose of the law is safeguarding of the legitimate right and interests of citizens to participate in social insurance and enjoy the benefits of social insurance. Article 2 guarantees the right of citizens to access material assistance starting from the institutional guarantee of the state. Article 4 indicates that social insurance agencies and employers shall be obliged to offer information upon request and consultation. After the introduction of the Social Insurance Law, buzz words such as the right to social insurance and legitimate rights and interests of social insurance have surfaced in corresponding rules and regulations. For instance, “safeguarding the legitimate right and interests of citizens” became the legislative goal of the Interim Measures for the Advance Payment of Social Insurance Funds (promulgated on June 29th, 2011, Ministerial Order No. 15 of the Ministry of Human Resources and Social Security). Another example is the Interim Measures for the Participation in Social Insurance of Foreigners Employed in China (promulgated on September 6th, 2011, Ministerial Order No. 16 of the Ministry of Human Resources and Social Security), of which the legislative goal is to “safeguard the legitimate right and interests of foreigners employed in China to participate in the social insurance and enjoy the benefits of it.” Therefore, foreigners enjoy the right to social insurance. The coverage scope of the social insurance scheme was expanded from workers to the whole body of nationals, as well as foreigners and those stateless persons under certain circumstances. The subjects listed above, therefore, enjoy on an equal footing the legitimate rights and interests of social insurance and have corresponding obligations. The human rights dimension of the social insurance system has made itself more felt.

In terms of public law, the right to social insurance includes the right to make a claim to social insurance agencies, the administrative departments of social insurance, the health department and to the financial department, etc. It can also be interpreted as the obligation and duty of employers, including social insurance clauses in labour contracts, insurance registration responsibility of employers (including social insurance registration of employers and that for employees), obligation of information disclosure on the part of employers, as well as the right of individuals to make claims of their employers (for example their right of supervision over the payment of fees on the part of employers).

“Welfare relies upon the relationships between cash dealings.” From a macro perspective, as part of the social security system, social insurance is designed to function as redistribution of income. As the German civil jurist Dieter Schwab found, the fusion of the conception of a social state and liberalism means that the freedom of individual activities, the right to economic competition and the right to property shall be sustained in principle; however, there is tension between these freedoms and social policy purposes, which should be regulated and restrained. From this point, the right to property and social constraint becomes the inherent content of the concept of ownership, and determines the internal tension. Thus, the establishment, implementation and reform of a social insurance system exert an impact on property ownership.

The collecting of the social insurance fee and the distribution of benefits also point to the right to property. An important feature of development in terms of China’s social insurance is the transformation from the right to social insurance and the fragmentation and the sharply divided social insurance system to a social insurance right with the feature of property right. This is manifested by the tendency of the right to social insurance portability, overlap and accumulation, as well as the tendency of non-mitigation of rights and interests as a result of transferring, integration and accumulation of the social insurance benefits, which is a correspondence to property rights in the common sense. Such a transformation resembles the “securitization of assets”. The positive feature is self-evident: it is conducive to the free movement of labour, and it is conducive to social insurance rights and interests of social members.

A. Dual nature of public law and private law

When perceived from the perspective of the right to property, social insurance may manifest itself in terms of both public law and private law. After preliminary formal analysis, compared with general property rights which involve the right to social assistance and the right to social benefit in public law, we can see that the right to social insurance will only be realised upon the basis of payment of a premium; the claim of benefit in social insurance programs like pension schemes is very much relevant to premium payments made on the part of the persons insured and their employers. In foreign legal practice, as early as 1980, the Federal Constitutional Court of Germany extended the protection of the property right to include the right to claim in public law based on social insurance. In view of the relationship between social insurance and the right to property, the construction and implementation of the social system shall consider general legal principles and requirements, such as the principle of legal reservation and principle of precedence, especially when viewed from the perspective of institutional arrangement and reform of property rights. Due to this factor, the author of this paper holds the view that when adjusting the fees and rates of social insurance policies in basic pension schemes and medicare programs, the principle of legal reservation shall be abided by from the perspective of protecting property rights, rather than introducing normative documents in lower hierarchical order like ministerial rules and regulations.

B. Tension between coerciveness and property rights

The establishment and implementation of the social insurance system must deal with issues of property rights on a normative level. Does it constitute a restraint on or deprivation of property rights when employers and insured individuals in the mandatory social insurance scheme are obliged to pay for their premiums and monthly payments? In some sense, this is the problem that will penetrate the whole social insurance system. The tension between the fee collection or tax payment in mandatory manner and property rights protection is an unavoidable topic for discussions in politics and jurisprudence.

The right to social insurance is in nature a property right, but it is quite special and may vary from other forms of property rights. For instance, property rights may be handled in any arbitrary manner, and even given up, but the right to social insurance cannot be abandoned. Furthermore, after the establishment of the occupational injury insurance system, the right to occupational injury insurance and compensation shall not be abandoned or altered due to agreement between parties to the labour contract. As stipulated in Provision 2 of Article 2 of the Regulation on Work-Related Injury Insurances revised on December 20th of 2010, employees of enterprises, public entities, social associations, privately funded non-enterprise units, foundations, law firms and accounting firms, and hired labours with the individual industrial and commercial household businesses within the boundaries of the People’s Republic of China, shall enjoy the right to occupational injury insurance benefits in accordance with such a provision. The same as other social insurance rights, the occupational injury insurance right is mandatory. Elevated into the general right to social insurance, the efficacy of the right will not be subject to the will and agreement of individual parties.

The collection of social insurance fees involves both individuals participating in the social insurance scheme as well as their employers. Insurance schemes such as pensions, medical care and occupational injury require fees be paid by employers. Adjustment of the social insurance rate and basic fee collecting threshold, as well as requirement for payment deadline, will exert influence upon property rights of individuals insured as well as their employers. The social insurance scheme and required fee payment is on a mandatory basis. Does this mean an infringement upon the right? There has been an ongoing discussion about such an issue in the Taiwan region. The “Judicial Yuan” on the island in its Court Interpretation No. 676 said that the Health Insurance Law for All Persons (hereinafter referred to as the Health Insurance Law) adopted a mandatory measure to levy insurance fees which could be perceived from the perspective of payment obligation in public law, and the fee shall be levied on people with different incomes on the basis of fairness and justice which could be seen as a foundation for the sustainability of such a scheme. However, the calculation of relevant insurance fees as well as quota determination shall be subject to the restraint of people’s property rights, and the principles of reservation of law, and the principle of explicit authorization, as explained in the court’s No. 472, 473 and 524 interpretations. The author holds that starting from general doctrines of jurisprudence, the social insurance legal system as a sub-category of the system of public laws should incorporate the collection of fees and taxes of social insurance into the law, and regulate social insurance fees and tax collection through the principle of reservation. Because the collection of social insurance fees is directly related to the property rights of the insured and their employers, it is obvious that the social insurance scheme should proceed in accordance with various basic principles of the public law, and in line with various requirements of rule of law, both in procedural and substantive terms. Such requirements shall not be relaxed due to the fact of social insurance benefit distribution.

The fees and rates for social insurance should remain stable and avoid ups and downs by a large margin but shall be subject to cautious adjustment. The large scale health reform in Germany was signalled by the Law of Controlling Fees of Disease Insurance of 1977, when the Law of Controlling Fees of Disease Insurance. and the overall goal and guiding principle of the reform is to cut expenses, controlling expenditures according to collection of fees, and maintain the stable level of fees and rates. The last element was also targeted at protecting the property rights of individuals, which means that basic healthcare insurance shall not have a large impact upon the right of property of those insured.

C. Social insurance benefit viewed as property right

In a general sense, the social insurance benefit is a property right in public law on the part of the insured. The German academic legal circle holds the general view that the social insurance payment is essentially sozialeigentum, or social property. A concept of “property in social law” has been formed, as the property right in private law has transformed into protection of property right in public law. Property law guarantees may well cover the social security payments with the nature of subjective public rights. In the Report on Social Insurance by Sir William Beveridge in the United Kingdom, social insurance benefit was described as the return for insurance fee payments, rather than a free lunch provided by the government.

Social insurance benefit payments will be made in the form of money, including pensions (as well as subsidies for death and funeral, and pension for the disabled or for the family of the deceased), basic health insurance, qualified medical care benefit, medical fees from occupational injury insurance, rehabilitation payments, board expenses during hospitalization, unemployment insurance benefit (as well as one-time subsidies and pensions for death during the period of claiming unemployment insurance benefits, and pensions for the disabled or for the family of the deceased), and health expenses covered by maternity insurance and maternity subsidies, etc. In the field of basic pensions, monthly payments are made. Adjustment of pensions will also have a huge impact upon the economic situation and property rights of the retired insured people. The social insurance benefit in the form of money contributes to the tendency of transforming the insurance benefits to property rights.

D. Property rights attribution of social insurance fund

Generally speaking, the sources of the social insurance fund are fees and payments collected from employers and individuals, as well as state financial assistance. The social insurance fund is the lifeline for the social insurance system, and, in theory, could be perceived as the publicly owned capital of all insured, the ownership of which belongs to all citizens involved in the insurance scheme. Correspondingly, the competent authorities of the social insurance and other state organs, as trustees of all of those insured, shall manage the social insurance fund on their behalf.

The nature of the social insurance fund determines the use of the funds, its operational pattern, and the choice of supervision. Take pensions for instance, can the pension fund be used for those other than the retired? The answer to this question is up to the ownership right of the fund. If the basic nature of the social insurance fund lies in its social support, then the priority shall be given to those insured in terms of their self-management, and the primary choice is to entrust social organizations and institutions to operate the fund. As for the supervision mechanism, public supervision should play the leading role and administrative supervision should coordinate the process.

The nature of the fund determines its use. For instance, does the unemployment insurance scheme cover the unemployed college graduates? During the opinion-soliciting phase of the draft Social Insurance Law, there were people raising the idea that those recent college graduates who were unemployed should be included into the scope of unemployment insurance scheme. This proposition is well meant of course. However, it infringes upon the ownership right of the unemployment insurance fund of all those who pay fees for the insurance, and contravenes the general doctrine of contributing to the fund first and then enjoying the benefits. The unemployment insurance fund, formed through a scheme participated in by both employers and workers, is a special form of common property belonging to all of those participating in such an unemployment insurance scheme. Generally speaking, the unemployment insurance fund should cover unemployed workers who have made contributions, and thus function as a guarantee for their relevant rights and interests as purchasers of the insurance. New graduates do not fulfil the fee payment obligation for such unemployment insurance and therefore do not have the right to claim its coverage and benefits. As a result, if the newly unemployed college graduates are allowed to enjoy the insurance benefit, the property rights of all of those insured by the scheme will be infringed upon. Seen from this perspective, the ownership nature of the fund will orient the interpretation and handling of such issues, and will lead the discussion in the right direction.

III. Social Insurance and the Right to Liberty: from Confrontation to Uniformity

On the one hand, traditional liberals tend to portray a tension between social insurance and liberalism. On the other hand, the concept of liberty occupies an irreplaceably important position in terms of the concept, institutional principle and concrete rules of social insurance.

A. Its tension with liberty right

According to Friedrich Hayek, in general, a social security system is “a road to serfdom”, since social security is an industry monopolized by the government, and a huge agency in charge of the distribution of payments will be established, which will in turn lead to the abolishing of principle of liberty. It is for this reason that Martin Anderson made the assertion that insurance organized on a private basis in the market shall be preferred by liberals. Ludwig Wilhelm Erhard, the first economic minister and the second chancellor of the Federal Republic of Germany, one of the founders of the theory of the social market economy order, noted that economic liberalism and an overall mandatory insurance system cannot be reconciled.

A mandatory social insurance institutional arrangement and its concrete rules might exert restraint on individual liberties. Inadequate social security institutional arrangement may also constitute infringement upon liberties (such as liberty of movement and liberty of occupational choice) and property right of individuals. Examples of this occurred repeatedly in history. Historical evidence shows that a planned economy with high degree of welfare tends to impose constraints on individual liberties. The “State-work unit” mode of a social security system also ties individuals closely to the arrangement of their work units. The national social insurance system, if rigidly fragmented among different industries, regions, urban and rural areas, and without a sound transfer means, will jeopardize the rights and interests of social insurance, and will definitely restrain the freedom of occupational choice or movement and migration. This has been a reality of China’s social insurance system that features a lower-level coordination arrangement and difficulties of transferring and renewal.

B. Reconciling social welfare with the right to liberty

The relationship between social insurance and liberty can be perceived through the following aspects:

Seen from the perspective of institutional functions, through the institutional implementation of social insurance, insured members of society enjoy a certain economic security guarantee when faced with old age, diseases, and risks such as unemployment, thus they secure liberty in substantive sense. After all, freedom is not determined by the law if one’s economic situation permits no choice. Dire economic conditions and social circumstances impose serious restraints on modes of behaviour and autonomous choices of members of society. And it is obvious that, to some extent, welfare legislation may help enhance freedom by alleviating dire economic conditions. In order to exert the right to liberty in a large enough dimension, certain economic elements are necessary. As proclaimed by Franklin Roosevelt, “a person with nothing to lose is not a free man”. In his work The Will and Road to Socialism, Clement Richard Attlee raised a similar proposition, saying that being homeless did not equate to freedom. Obviously, the arguments above have their own rationality.

Modern thoughts, especially the new liberalism, offer a theoretical source for the introduction and development of social security as well as regulation of the society by government. Ludwig Wilhelm Erhard noted that the principle of self-reliance is one of the major principles of social security, and priority shall be given to self-assistance and self-responsibility. In the context, “state mandatory protection schemes shall be avoided when the individual and his family are still competent of self-responsibility and taking precautions”.

A sound social insurance system is conducive to the guarantee and elevation of individual liberty, instead of posing restraints on it. A social insurance system as a legal scheme passing the test of legislative process and policy-making procedure shall remain mandatory for the members it covers. Thus, from an external point of view, the social insurance system does impose restraints on personal liberty.

Erhard noted that in order to maintain a free economic and social order in the long run, apart from introducing economic policies helping people to regain personal liberty, there should also be an equally liberal social welfare policy. By securing the economic sustainability of people who would otherwise be in need, individual liberty has been greatly elevated. The development of the social security systems has thus helped facilitate the exercising of individual liberty. This can be seen, for example, in the transition from “measures” to “contract” in Japanese welfare legislation. The so-called “measures” were basically administrative means, and the individuals regulated in this way were unable to choose facilities and services, instead they must obey the state’s decisions and measures. After the institutional reform featuring “contracts”, individuals began to enjoy the right to choose the items included in the services and the degree of their involvement according to their own judgement. The introducing of contracts and a relevant institutional design has greatly elevated the autonomy of individuals enjoying social welfare.

Seen from this perspective, mandatory social insurance is in direct conflicting with liberalism. In fact, once social insurance becomes unavoidable, liberals tend to adopt a general solution, namely overall social insurance. The reason is clear and simple: if one particular group of people was included in the social insurance scheme, and others were not, the unfairness would be obvious. Thus, “liberalism is more flexible in terms of its tolerance to social security than people could imagine.”

However, with the progressive development of thinking on social insurance, the room for free choice has witnessed increasing expansion. For example, basic health insurance schemes in some countries have witnessed enhanced freedom of choice. As is indicated by following features:

a. Free choice of healthcare insurance agencies. Through a competitive mechanism, rates of different health care insurance funds are pretty much the same, thus the fairness of the sector has been improved. After the introduction of a law on health, those citizens that are insured can opt for health insurance agencies on the basis of their own free choosing. Those insured can alter their health insurance agencies upon the premise of three-month of notice in advance. Globally speaking, more and more countries offer those with health insurance more freedom of choice.

b. Those with higher incomes can choose between statutory healthcare and private healthcare insurance. German citizens with income levels well above the coverage threshold of public health insurance are named as “voluntary insurers”, meaning that they have the right to choose between statutory health insurance and private health insurance in accordance with their personal situations and will.

c. Room for choice of social insurance service agencies. China has adopted the system of “designated health care institutions” for health insurance, offering more choices for the insured for their medical treatment, and expanding the right to healthcare of the insured. This practice meets the country’s development needs and provides easier access to the health service. Most of the countries with a social health insurance system offer the insured the right to choose hospitals or doctors.

The expansion of options is conducive to a more competitive market and higher efficiency. Alain Enthoven noted that proper regulation will be more conducive to a more competitive market, more effective use of resources and squeezed expenditures and higher quality. Greater room for more options is good news for those insured and may achieve the effect of “high efficiency and more convenience”. In a more general sense, the greater the room for options, the fairer the institution would be.

Thus, the impact of orientation and the effect on individual liberty is an important indicator when measuring the development of social insurance and the efficiency of the system constructed. When we are evaluating the effect of the implementation of a social insurance system, indicators may include its fairness, welfare nature, as well as its impact on individual liberty – whether it is positive or negative.

IV. Social Insurance and Labour Right: Similarities and Distinctive Features

The right to social insurance is closely related to the right to work in terms of its nature and orientation. The labour law and social insurance law thus display a close relationship. This is true in China. The Labour Insurance Regulations of 1951 narrowed the application of labour insurance to the subjects involved in work. The Labour Law of 1994 in its preamble makes it clear that the legislative goal of the law is to protect the legitimate rights and interests of workers. Article 3 of the law stipulates that the right to social insurance and welfare is an important labour right. Article 5 sets out government’s responsibilities, including its duty of “adopting various measures” to “improve social insurance”. Article 9 of the Labor Law sets out in a separate chapter “social insurance and welfare”. It is obvious that the relationship and distinction between the two are worthy of discussion.

A. Resemblance to labour rights

The resemblance manifests itself as follows,

Workers’ rights are a combination of private and public rights. and the contents, the definition and the realization of the labour rights are related to employers and government agencies. Social insurance schemes feature a combination of both public and private rights, especially the social insurance rights and interests enjoyed by general workers.

From the aspect of private rights, the insured have the right to make claims of their employers, and correspondingly the employers have obligations and duties. Provision 1 of Article 4 of the Labour Contract Law stipulates that employers have the duty to improve their labour rules and regulations to guarantee the right of workers. Provision 2 of Article 4 of the Labour Contract Law states that when formulating, revising or determining rules and regulations, and important matters concerning the pertinent interests and rights of workers, employers shall introduce draft plans and solicit opinions from the union or all employees, and decisions shall be made on the basis of consultation with the union or other representatives of employees. Article 17 of the same law even incorporates the social insurance clause into the necessary items of a valid labour contract. In accordance with Article 38 of the Labour Contract Law, employees have the right to unilaterally terminate the labour contract if their employers fail to pay their social insurance fees. In accordance with Article 46 of the Labour Contract Law, employers shall offer economic compensation to employees who unilaterally terminate their labour contract due to their employers’ failure to pay their social insurance fees. Interpretation of the Supreme People’s Court on Several Issues about the Application of Laws for the Trial of Labour Dispute Cases (I, II, III) also laid out rules and regulations about social insurance payments and benefits, and the relevant rights and obligations of employers and employees. Obviously, the employees’ claims to their employers in terms of social insurance often overlap with their rights as employees.

In terms of the aspect of a public right, the right of claim is related to social insurance administrative departments, other relevant government agencies, and organisations authorised by laws and rules. The right of claim has a universal and ultimate nature.

First, the specific subject, who is not in any labour relationship but still covered by the social insurance scheme, shall enjoy a pension, health insurance and maternity insurance (if female), etc. For example, the new types of rural social pension scheme and urban resident pension scheme are rather simple in terms of the relationship between subjects, since they are not involved in a complicated labour relationship compared those that are restrained by a labour contract. This is indicated mainly by a relationship between the insured and their insurance agencies. Under such circumstances, the right to social insurance does not overlap with labour rights, but is reflected by a right of claim in public to the insurance agencies, fee-collecting institutes and competent administrative departments.

Second, the exertion and realisation of any such social insurance right include a right of claim in public law. Situations include (but are not limited to) the following: a) collecting the social insurance fees is in essence pubic law; b) qualification screening is in essence public law, for example, the affirmation of occupational injury and unemployment registration; c) benefit distribution from the social insurance fund to the socially insured is in essence public law. Social insurance with the features of public law as mentioned above shall be subject to administrative legal proceedings when disputes arise, through administrative reconsideration, administrative lawsuit, state compensation and other administrative means of dispute resolution.

B. Distinction from labour rights

The right to social insurance belongs to workers’ rights, thus it becomes a constituting part of them. There are several reasons behind this. First, in terms of theory, the traditional concept holds that the core of a social insurance system is to secure the economic security of employed people. Workers are the major group covered by a social insurance scheme. If serious problems occur in the employment market, the social insurance system will lose a solid foundation. This is why in the United Kingdom “adequate employment” was named as a primary task in the Report on Social Insurance by Sir William Beveridge. In Japan, a huge transformation in employment structure began to appear at the end of 20th century, and the proportion of informal employment amounted to 1/3 of the total working population. As formal workers decrease in number, informally employed workers tend to be more easily ousted from their positions or simply fired, which has fundamentally shaken the social security system of the country. Second, from the perspective of statutory law, the right to social insurance has a close relationship with the legitimate rights and interests of workers. Third, from a historical angle, home and abroad, the right to social insurance and interests of workers take precedence. In Labour Insurance Regulations of the P. R. China of 1951, the right to social insurance belongs exclusively to employed workers. However, some people hold that the right to social insurance shall be separate from labour rights. In view of the developments over time, social security has becomes an equally important and fundamental topic for discussion as labour relations. According to Yang Yansui, the social insurance laws in developed industrial countries have developed into an emerging branch of law, independent from civil legislations and labour legislations.

A more progressive idea is that the right to social insurance shall take precedence and occupy a more basic position. According to this view, labour relations should be based upon a solid social security system, rather than vice versa. For example, Huang Yueqin has explicitly pointed out worker labour relations in the future shall be based upon a social security system.

The author of this paper stands on the middle ground. First, labour rights and the right to social insurance overlap with each other on both theoretical and practical level. The relationship of the two takes various forms such as co-existence, complementariness, and concurrence.

Chinese academia and those practising law tend to agree that retirees are not workers any longer. A practical question is: Do the retirees still enjoy the right to social insurance, such as occupational insurance? Similar questions are as follows: Do the migrant workers above the statutory retirement age still enjoy the right to occupational insurance and the like? Do retirees receiving pensions have the right to enter into labour relationships with new employers? If so, what is their social insurance relationship? How to deal with an occupational injury? For those that are above the age of retirement but do not formally retire from their positions and yet enjoy the basic pension, how to deal with an occupational injury?

An option is to make workers’ rights and the labour relations as the foundation of the social insurance right and social insurance relations. The judicial interpretation of the Supreme People’s Court in 2010 tended to endorse this view. Interpretation of the Supreme People’s Court on Several Issues about the Application of Laws for the Trial of Labour Dispute Cases (III) (SPC Interp. No. 12 [2010]) in its Article 7 made it clear that under the circumstances above, the right to social insurance does not apply here where employment relations exist. Some local legislators followed this pattern. For example, the Regulations on Occupational Insurance of Guangdong Province revised in 2011 in Provision 1 of Article 65 says that the regulations shall not apply to labourers above retirement age or those that are already covered by a basic pension scheme. However, the employed may ask for compensation from their employers in accordance with the relevant occupational injury insurance if they suffer an occupational injury while working for the employers. However, if we make a sharp distinction between labour rights and social insurance rights, even making social security as the foundation for the labour relations, totally different conclusion may be made.

Second, as Huang Yueqin observed, due to the complicated relationship between the labour law and social insurance law, it is still too early to say if we can simplify the relationship between labour rights and the right to social insurance. However, in individual cases, they may at some point face the dilemma of getting overlapping protection or lose both. Anyway, the coordination between labour rights and the right to social insurance has become an important topic both in theory and practice.

The guarantee of right to social insurance under dual or multi-level labour relations is also a topic deserving attention. Traditional labour law holds a simple view towards labour relations. Under the modern flexible working mode, labourers engaged in dual or multi-level labour relations are not rare. How do they participate in social insurance scheme and protect their social insurance right and interests? The labour law is not the perfect option for tackling the issue.

The questions above indicate that social insurance studies in the dimension of labour laws, and protection of the right to social insurance within the purview of labour right security have wanes. With the advent of the post-industrial era and blooming development of various social fields, social insurance right and interest protection becomes an independent topic, separating from the protection of workers’ rights. We need to enhance the study of social insurance and come up with new theoretical model and relevant plans.

Conclusion: Critique and Construction of a Discourse of the Right to Social Insurance

From both the macro rule of law of the country and micro discourse and discussion on the right to social insurance, the social insurance system confers a general and life-long right to members of society, satisfying people’s basic security needs and offering a secured expectation for life security. The Chinese social insurance system shall follow a path of “reform within the track of law”, so the legislation includes the realisation of the right as a key issue before implementation.

The social insurance system concerns with several constitutional rights of individuals and various types of legal persons and organizations, including the right to property and labour rights. Under this consideration, the principle of legal reservation shall be followed. Especially in terms of collection of social insurance fees (tax), the property rights of the individuals insured, enterprises and other units participating in the insurance scheme shall be established and adjusted through legal means. The property rights of those insured will also be influenced by the conditions and period they enjoy social insurance as well as the adjustment of standards of treatment, which shall be proceeded with through legal means. Traditional policy management shall give way to rule of law.

For this reason, revising the Social Insurance Law and Regulations on Unemployment Insurance should be on our policy agenda, so as to secure relevant rights, formulating a series of administrative rules and regulations for basic pensions, health insurance, and long-term care insurance. In the implementation of such a system, in order to secure the right to social insurance and guarantee implementation, protection of labour and social insurance rights shall be more actively enforced, the supervisory role of the labour security departments shall be enhanced, and judicial trial system for social insurance right relief shall be improved.